Cross Border Claims

Cross Border Claims: Picking a Fight, and Winning It

sprager@1chancerylane.com

aspencer@1chancerylane.com

26th May 2022

High Risk Cases

Those cases where jurisdiction is at the discretion of the court:

•Where the Defendant is located outside thejurisdiction;

•Where the Defendant is located within thejurisdiction but the Claimant and accident arelocated abroad;

•Scottish claims.

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High Risk Cases

CPR Part 6.37: applying for permission to serve the claim form outside the jurisdiction:

•The claim must be able to pass through one ofthe jurisdictional gateways.

•The Claimant must believe that the claim has areasonable prospect of success.

•The court must be satisfied that this is theproper place in which to bring the claim.

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High Risk Cases

The gateways:

•The contract and tort gateways;

•Anchor Defendants.

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High Risk Cases

Forum conveniens: Al Assam vTsouvelekakis [2022] EWHC 451 (Ch):

•Personal connections;

•Factual connections;

•Evidence, convenience and expense;

•Applicable law;

•Overall shape of the litigation.

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High Risk Cases

Personal connections: residence:

•Chowdhury v PZU [2021] 11 WLUK 176,permission to appeal refused;

•Stait v Cosmos Insurance, 24th June2021, under appeal.

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High Risk Cases

Factual connections: the accident:

•Klifa v Slater [2022] EWHC 427 (QB):less important where liability has beenadmitted.

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High Risk Cases

Evidence, convenience and expense (aka‘juridical advantage’):

•Costs, funding and enforcement;

•The language of the proceedings: VTB vJSC [2021] EWHC 1758 (Comm);

•Klifa v Slater [2022] EWHC 427 (QB).

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High Risk Cases

Applicable law:

•VTB v JSC [2021] EWHC 1758 (Comm);

•Klifa v Slater [2022] EWHC 427 (QB).

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High Risk Cases

Overall shape of the litigation:

•Klifa v Slater [2022] EWHC 427 (QB).

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High Risk Cases

An example:

•Both Claimant and Defendant aredomiciled in England;

•Road traffic accident occurs in Greece.

Change the facts a little:

•The Claimant is Greek; or

•The Defendant is Greek.

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High Risk Cases

Another example:

•Claimant is domiciled in England;

•Road traffic accident occurs in England;

•Defendant insurer is Greek.

Odenbreit jurisdiction no longer applies,and the Greek insurer cannot be served inEngland.

•Rome II, Article 4(1).

•Rome II, Article 18.

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Actions for contribution or indemnity

Another example:

•Claimant brings a claim against a touroperator under the Package TravelRegulations;

•Defendant tour operator wishes to passon any liability to the supplier;

The Defendant has a choice; but whetherit issues a Part 20 claim or waits is abalancing act.

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Actions for contribution or indemnity

In favour of a Part 20 claim:

•All issues can be dealt with at once;

•The supplier is likely to be more cooperative,making the defence more likely to succeed;

•The supplier cannot subsequently argue thatthe tour operator has failed to mitigate its loss.

Against a Part 20 claim:

•Wagenaar v Weekend Travel [2015] 1 WLR 1968costs liability – it’s better for the tour operator ifthe claim succeeds.

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Actions for contribution or indemnity

In favour of a separate claim:

•If the claim fails, the costs of a Part 20 claimare saved;

Against a separate claim:

•Jurisdictional uncertainty. The courts maydecline jurisdiction in the recovery claim;

•If the supplier provides disclosure and witnessstatements not provided in the main claim, theclaim could fail on the facts – the court is notbound by the findings of fact made in the mainclaim;

•Delay and potentially increased costs.

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Low Risk Cases

Civil Jurisdiction and Judgments Act 1982,ss.15A,B and 15C:

Where the subject matter of the claimwould have fallen within recast Brussels,some of the old rules have beenpreserved.

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Low Risk Cases

Civil Jurisdiction and Judgments Act 1982,ss.15A,B and 15C:

s.15A: the subject-matter and nature ofproceedings would have been within thescope of recast Brussels;

s.15E: in interpreting these provisions thecourt will have regard to pre-Brexitcaselaw.

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Low Risk Cases: s.15B: Consumers

s.15B:

(1)This section applies in relation to proceedings whose subject-matter is a matter relating to a consumer contract where the consumer is domiciled in the United Kingdom.

(2)The consumer may bring proceedings against the other party to the consumer contract—

(a)where the other party to the consumer contract is domiciled in the United Kingdom, in the courts of the part of the United Kingdom in which the other party to the consumer contract is domiciled, or

(b)in the courts for the place where the consumer is domiciled (regardless of the domicile of the other party to the consumer contract).

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Low Risk Cases: s.15B: Consumers

s.15E:“consumer”, in relation to a consumer contract, means a personwho concludes the contract for a purpose which can be regardedas being outside the person's trade or profession;

“consumer contract” means—

(c) a contract which has been concluded with a person who—

(i) pursues commercial or professional activities in the part of theUnited Kingdom in which the consumer is domiciled, or

(ii) by any means, directs such activities to that part or to otherparts of the United Kingdom including that part,

and which falls within the scope of such activities,

but it does not include a contract of transport other than acontract which, for an inclusive price, provides for a combinationof travel and accommodation or a contract of insurance.

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Low Risk Cases: s.15B: Consumers

s.15E(c)(ii):

A person who by any means, directs such activities to that part orto other parts of the United Kingdom…

Pammer v Reederei Karl Schluter and Hotel Alpenhof v Heller. (C-585/08 and C-144/09)

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Low Risk Cases: s.15B: Consumers

Categories of cases:

•Cosmetic surgery (and also think aboutmaking a claim under s.75 of theConsumer Credit Act 1974);

•Accommodation contracts.

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Medium Risk Cases: s.15A: Consumers

Contracts concluded by someone otherthan the Claimant:

•Lackey v Mallorca Mega Resorts [2020] 1All ER 558;

•Schrems v Facebook Ireland Limited,Case C-498/16.

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Low Risk Cases: s.15C: Employees

(1)This section applies in relation to proceedings whose subject-matter is a matter relating to an individual contract ofemployment.

(2) The employer may be sued by the employee—

(a) where the employer is domiciled in the United Kingdom, in the courts for the part of the United Kingdom in which the employer is domiciled,

(b) in the courts for the place in the United Kingdom where or from where the employee habitually carries out the employee's work or last did so (regardless of the domicile of the employer), or

(c) If the employee does not or did not habitually carry out the employee's work in any one part of the United Kingdom or any one overseas country, in the courts for the place in the United Kingdom where the business which engaged the employee is or was situated (regardless of the domicile of the employer).

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Low Risk Cases: s.15B: Employees

Categories of cases:

•Accidents at work;

•Accidents on the way to work;

•Failure to inoculate or provide advice asto inoculation or other work-relatedmatters;

•Failure to provide health insurance or toensure that medical treatment providedlocally is competently provided.

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The Italian Torpedo

What is it?

•The Italian Torpedo is a method used bypotential Defendants to devastating effectto prevent themselves from being sued inthe courts of disadvantageous jurisdictions(such as England and Wales, unless you’reAmerican, in which case England andWales seems positively benign).

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The Italian Torpedo

How to do it:

•The Defendant brings proceedings in itshome court seeking a declaration that it isnot liable to the Claimant or that itsliability is limited, or seeking damages onbehalf of its insured.

•This must be done before the courts ofthe disadvantageous jurisdiction areseised – so the Claimant is not informed ofthe Defendant’s intentions.

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The Italian Torpedo

How to deal with it:

•The parties must be the same in bothsets of proceedings. Where, therefore, aninsurer torpedoes in its own name, a claimagainst the insured or a related companymay still be available, depending on thecircumstances.

•The issues must be the same in bothproceedings. Where, therefore, thesecond claim can be framed differently,the torpedo may not detonate.

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The Italian Torpedo

How to prevent it:

•The only sure way of preventing theItalian Torpedo is to pre-empt it by sinkingthe Defendant battleship before it knowsyou’re there.

•The disadvantages of this course ofaction are obvious – failure to follow theProtocols, issuing before you’re ready, andpotential costs consequences.

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Sarah Prager and Andrew Spencer

sprager@1chancerylane.com

aspencer@1chancerylane.com

Next time:

On 8th June

Francesca O’Neill and Henk Soede discuss the assessment of damages in professional

negligence claims

26th May 2022